[00:00:00] Speaker 00:
We'll begin with Bruce V. Becerra.

[00:00:03] Speaker 00:
The council would state your appearance and let us know how much time you would like to reserve for rebuttal.

[00:00:08] Speaker 03:
Good morning, Your Honor.

[00:00:09] Speaker 03:
Brent Robinson for plaintiff, appellate Brent Bruce.

[00:00:12] Speaker 03:
With the permission, I reserve five minutes for rebuttal.

[00:00:15] Speaker 00:
Five minutes.

[00:00:15] Speaker 00:
Okay.

[00:00:16] Speaker 00:
Go ahead, please.

[00:00:17] Speaker 03:
Thank you.

[00:00:18] Speaker 03:
Good morning, Your Honor.

[00:00:19] Speaker 03:
May it please the court?

[00:00:22] Speaker 03:
The court shows that a deficit of just one point on him at his court separated Mr. Bruce from selection into the position he sought.

[00:00:32] Speaker 03:
Now, unless the court has questions concerning the illegal authorities raised in the briefing, I will focus my evidence this morning on three aspects of the record that I will each show the material factual basis as to whether Mr. Bruce was denied that one point because of his having engaged in protected activities.

[00:00:53] Speaker 03:
Those three points are as follows.

[00:00:54] Speaker 03:
First, Jackson, his former supervisor, had motive, means, and opportunity to retaliate against him.

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Second, the other decision-makers involved in the selection process had knowledge of his prior protected activities, and the record supports an inference that they had a motive to engage in retaliation.

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And third, Mr. Bruce was profoundly more qualified than several of the other selectees.

[00:01:25] Speaker 03:
That's my first point.

[00:01:28] Speaker 03:
Ms.

[00:01:28] Speaker 03:
Jackson was found by the EOC's ALJ to have engaged in a colossal failure to engage in a good interactive process.

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And she nonetheless found herself on this interview and selection panel.

[00:01:43] Speaker 00:
Can I ask you about the qualifications?

[00:01:48] Speaker 00:
Job description specifically says there's no education requirement for this position.

[00:01:54] Speaker 00:
And at least three of the other four candidates also had a JD, one had an LLM, just like Mr. Bruce, and then the one who wasn't a lawyer

[00:02:05] Speaker 00:
had relevant contracting experience in both the public and private sectors.

[00:02:09] Speaker 00:
So why does that establish that Mr. Roos was clearly superior in his qualifications?

[00:02:14] Speaker 03:
I think it goes to the quantum experience.

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The job description does say that education qualifications are not required, but they do say that it contributes towards a required experience.

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And the position was an embedded regulatory calendar.

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and the position involved advising on pending or proposed legislation as well as how to implement existing regulations and legislation.

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It was very much so a legally intensive position.

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And the reason why Mr. Bruce's educational components, although some of those first, gave him superior qualifications is because they represent additional years of directly relevant experience, a law degree,

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and a master of laws, both of those are years of dedication to learning how.

[00:03:04] Speaker 00:
But they all had at least five years of either work as regulatory counsel or office of compliance and enforcement experience.

[00:03:13] Speaker 00:
So I guess I'm still not seeing why Mr. Bruce is clearly superior.

[00:03:18] Speaker 00:
Well, Your Honor, I think it goes to the theme

[00:03:21] Speaker 03:
experience that's directly relevant to the position in question.

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His prior service to the agency touched on all of these divisions, and his prior services specifically focused on the kind of duties that the position was provided to perform, specifically the evaluation of proposed legislation,

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and preparing new implementation of existing policy regulations, including through that framework that he was notably lauded by a prior supervisor for health measures through as a great success.

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So his quantum of directly relevant experience is simply significantly greater.

[00:03:57] Speaker 03:
Yes, they all cross threshold, and that's all they all were selected for interviews.

[00:04:01] Speaker 03:
But Mr. Bruce simply had more relevant experience.

[00:04:06] Speaker 03:
This goes to your race discrimination theory, right?

[00:04:10] Speaker 03:
It goes to both, I think.

[00:04:15] Speaker 03:
And the reason for that is that it suggests that the employer's stated reasons for selection are not true.

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Because the decision makers in their affidavits as the EEOC investigators pointed both to the elevated interview scores, and they emphasized that quite heavily, but they also pointed to the quantum experience that the candidates had.

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And I think that the record reflects, and in principle, we draw in favor of Mr. Bruce on the notion that his quantum experience was breaker.

[00:04:48] Speaker 03:
At least sufficient to call into question, at summary judgment, on the summary judgment standard, the veracity of the employer is proffered legitimate as a reason for non-selection.

[00:04:59] Speaker 00:
How do we think about the fact that a person who was selected is the same race as Mr. Bruce?

[00:05:06] Speaker 00:
How does that show race discrimination?

[00:05:09] Speaker 03:
Well, Your Honor, I don't think it really affects analysis much at all, probably because of etiquette versus heel, right?

[00:05:16] Speaker 03:
The fact that one member of the protected group is treated more favorably is not an offense to discrimination against Mr. Bruce.

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And as the trial court correctly noted, there was no written policy in any way.

[00:05:29] Speaker 00:
I'm clear.

[00:05:30] Speaker 00:
That argument is that they showed more favorable treatment to Mr. Lawson, an African-American, but then showed

[00:05:39] Speaker 03:
Well, the trial court's analysis, Judge Coe, focused on the selection of who was going to be subjected to pre-decision background checks.

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That was as to both of them, and yet they selected Lawson.

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That's true.

[00:05:57] Speaker 03:
And frankly, Your Honors, while we still stand for the proposition that the race discrimination claims should survive summary judgment, I think really what I'd like to focus the court's attention on more than anything else here today is the retaliation.

[00:06:10] Speaker 00:
Can we ask about the reference checks?

[00:06:11] Speaker 00:
Were Mr. Bruce's references negative?

[00:06:14] Speaker 03:
I don't believe so, Your Honor.

[00:06:16] Speaker 00:
OK, so then why was it discriminatory to ask for the checks?

[00:06:21] Speaker 03:
Well, because you have to ask, why was the reference check initiated?

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And witnesses claimed that there was a policy, but the government was not able to point to any actual written policy about reference checks.

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And in fact, Mr. Cruz presented to the district court, and I have the citation here if the court will wish for it, the policy that said that all candidates before they are offered a position must be provided with,

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And that didn't happen here.

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Instead, only the two black candidates, more importantly, Mr. Bruce, was selected for reference check by the very supervisor who had failed to accommodate him in good faith.

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And so the inference we would have the court draw from that.

[00:07:00] Speaker 03:
is that perhaps Ms.

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Jackson on this record is looking for other justification for why Mr. Bruce should not be selected.

[00:07:08] Speaker 03:
How do you deal with the fact that Jackson was actually rated the highest of the three interviewers?

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I think that someone in a position of authority seeking to punish someone for their protected activity will typically be smart enough to say the right things and do the right things.

[00:07:31] Speaker 03:
And that might include giving somebody an increased score, having sat on a panel of snow with relative rankings behind a bed, as a way to cover up misconduct.

[00:07:41] Speaker 01:
Are you just speculating?

[00:07:43] Speaker 01:
Is there anything in the record that shows you actually were trying to retaliate against your client?

[00:07:49] Speaker 03:
Well, Your Honor, I think the evidence of her motive to retaliate, we don't have any direct evidence, I will concede that.

[00:07:59] Speaker 03:
But the evidence, the circumstantial evidence, is substantial.

[00:08:03] Speaker 03:
So we have the fact that she was aware, and the record shows, and the court draw inference on this, that she was aware of the ongoing oppositional activity that Mr. Bruce was engaging through his various EAC complaints.

[00:08:14] Speaker 03:
And we know that from two facts on the record.

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First, we know that in – after the fact, talking with EEOC investigators, Ms.

[00:08:21] Speaker 03:
Jackson accurately summarized portions of the judgment that had entered against her on the failure to accommodate claims.

[00:08:27] Speaker 03:
That's in the record at volume 5, page 884.

[00:08:31] Speaker 03:
Now, that judgment was never served on Ms.

[00:08:33] Speaker 00:
Jackson.

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The only way she could know about that was through its having been served on counsel for the agency that had related information to her.

[00:08:40] Speaker 03:
So the fact that some contemporaneous information from the ongoing proceedings was getting through to Mr. Jackson supports an inference that more was getting through to her, including, for example, when the agency, in trying to negotiate contemporaneously with the interview process, tried to negotiate with Mr. Bruce to get another agency voluntarily, and notably pushed back on his request

[00:09:01] Speaker 00:
when he's reinstated, he did place in the chain of command that did not have Ms.

[00:09:06] Speaker 03:
Jackson or her supervisor.

[00:09:08] Speaker 00:
That doesn't sound like evidence to support your claim that she was just perfectly calibrating her score to be higher than her score for the other three candidates and yet low enough that he would still end up being one point below everybody.

[00:09:26] Speaker 00:
Where's the evidence of that?

[00:09:27] Speaker 04:
Well, there's no speculation.

[00:09:30] Speaker 03:
It's not speculation.

[00:09:31] Speaker 03:
It's a cumulative circumstantial evidence.

[00:09:34] Speaker 03:
I'll go through the rest as well, because the colloquial phrase is, when there's smoke, maybe there's fire.

[00:09:41] Speaker 03:
And there's an awful lot of smoke on this record, Your Honor.

[00:09:43] Speaker 03:
So Ms.

[00:09:45] Speaker 03:
Jackson had knowledge of the contemporaneous EOS protected activities.

[00:09:50] Speaker 03:
She led and scored interviews.

[00:09:53] Speaker 03:
So through the scoring, she had directly her thumb potentially, at least on the scale of what the outcomes might be for all four of the positions that were hired into.

[00:10:02] Speaker 03:
She also had apparently the authority to independently order an ad hoc background check for people that wasn't specified in immigrant policies for the department.

[00:10:12] Speaker 03:
And finally, one of the decision makers for DPO was her direct subordinate.

[00:10:16] Speaker 00:
So which one is your stronger claim?

[00:10:18] Speaker 03:
Retaliation, Your Honor.

[00:10:19] Speaker 00:
Race or retaliation?

[00:10:20] Speaker 03:
I apologize for not letting you finish, Your Honor.

[00:10:23] Speaker 03:
Retaliation, we believe, is a stronger claim.

[00:10:24] Speaker 00:
Okay.

[00:10:24] Speaker 00:
What do you think is your weakness in your race claim?

[00:10:30] Speaker 03:
I think it's the question you first asked, Your Honor.

[00:10:32] Speaker 03:
It's, well, I think the record is sufficient to establish superior qualifications.

[00:10:36] Speaker 03:
I think it requires a hard look at the actual evidence of those qualifications.

[00:10:44] Speaker 03:
It is supported by the incredibly close difference between Mr. Bruce's score, which many of the witnesses said was dispositive.

[00:10:51] Speaker 03:
Ms.

[00:10:51] Speaker 03:
Ferris Clarke specifically said she thought the two witnesses, or I'm sorry, the two candidates between him and Mr. Lawson, were almost identical.

[00:11:00] Speaker 03:
And so she chose based on score.

[00:11:02] Speaker 03:
And that's a one-point difference off of interview questions that were very generally framed.

[00:11:05] Speaker 03:
They were not directed to the specific duties of this position.

[00:11:11] Speaker 03:
But again, I think the retaliation claim

[00:11:13] Speaker 03:
And I just realized I've gone quite grossly over my intention to reserve time.

[00:11:17] Speaker 03:
But I'll just finish by noting this.

[00:11:20] Speaker 03:
We have five different actors in the decision-making panel who all had knowledge of protected activities, and including one, Mr. Hilbert, who specifically noted in his interview notes that he was aware of the allegation that Mr. Bruce had been unlawfully removed, was aware that he'd been accused of being AWOL,

[00:11:41] Speaker 03:
I had been complained of being subjected to harassment and made a specific note to look.

[00:11:46] Speaker 03:
We have an interview decision maker who made a note to look into protected activity.

[00:11:52] Speaker 03:
Now, there's no legitimate reason for somebody making a hiring decision to ever look further into protected activities.

[00:12:00] Speaker 03:
And that is the closest that we can get here in this case, I think, to direct evidence supporting an inference of discriminatory animus.

[00:12:08] Speaker 03:
And I think on the record here, given the involvement of Ms.

[00:12:12] Speaker 03:
Jackson, given these four decision makers, all of whom were aware of protected activities, and given the incredibly close comparison between Mr. Bruce, who we contend was superiorly qualified, but who nonetheless was not selected based off a one-point distinction

[00:12:30] Speaker 03:
A one-point distinction that one decision-maker in particular said was dispositive.

[00:12:35] Speaker 03:
Given those facts, we respectfully submit that the trial court, the district court, erred in granting summary judgment in favor of the agency.

[00:12:43] Speaker 03:
We think material factual issue exists here, at least as to pretext and causation.

[00:12:47] Speaker 03:
Certainly in retaliation claims, it supports these claims going to a jury to weigh all this competing and disputed information regarding pretext and causation.

[00:12:56] Speaker 03:
And we'd ask the court to reverse.

[00:12:58] Speaker 03:
Thank you.

[00:12:58] Speaker 00:
All right.

[00:12:59] Speaker 00:
Thank you.

[00:13:12] Speaker 02:
It pleased the court.

[00:13:14] Speaker 02:
Michael Garrett, an Assistant U.S.

[00:13:15] Speaker 02:
Attorney here today with the appellee.

[00:13:19] Speaker 02:
The district court on this record got it right and it should be affirmed.

[00:13:22] Speaker 02:
I'm going to start with what I think is the easy claim, which is the race discrimination claim.

[00:13:28] Speaker 02:
I think that's an easy call.

[00:13:29] Speaker 02:
Then I'll talk about the retaliation claim, which I think is closer call, but still should result in an affirmance.

[00:13:36] Speaker 00:
Why do you think the retaliation claim is a closer call?

[00:13:39] Speaker 02:
Because Ms.

[00:13:39] Speaker 02:
Jackson was a panel member.

[00:13:41] Speaker 02:
And she did have a finding from a previous case that she didn't engage sufficiently in the interactive process.

[00:13:47] Speaker 00:
So why isn't that enough to survive summary judgment, that fact alone?

[00:13:53] Speaker 02:
Because she gave him the highest score of all the panelists.

[00:13:57] Speaker 02:
She wasn't the decision maker.

[00:13:58] Speaker 00:
Wait, how is she not the decision maker?

[00:14:00] Speaker 00:
Her score went into the composite score that determined who got the job.

[00:14:05] Speaker 00:
So how is she not a decision maker?

[00:14:07] Speaker 02:
She didn't make the final selection.

[00:14:11] Speaker 02:
It was another person who made the selection between the appellant and Mr. Lawson.

[00:14:15] Speaker 00:
But that was on the basis of the score to which Ms.

[00:14:18] Speaker 00:
Jackson contributed, correct?

[00:14:19] Speaker 02:
I'm sorry.

[00:14:19] Speaker 02:
I apologize for talking over your honor.

[00:14:22] Speaker 02:
The score was part of it, yes, but not the entire data that was in front of the decision maker.

[00:14:31] Speaker 02:
The score was, there were three scores totaled.

[00:14:35] Speaker 02:
The unrebutted testimony is there was no collusion among the panel members.

[00:14:39] Speaker 02:
There was no discussion.

[00:14:39] Speaker 02:
The scores all stood on their own.

[00:14:43] Speaker 02:
That was part of the analysis that decision-maker Ms.

[00:14:47] Speaker 02:
Ferris-Clark made.

[00:14:48] Speaker 00:
So now you're saying there are all these other soft factors beyond the scores that were used to make the hiring decision.

[00:14:55] Speaker 00:
Is that right?

[00:14:56] Speaker 02:
Ms.

[00:14:57] Speaker 02:
Ferris-Clark?

[00:14:57] Speaker 00:
What are these other soft factors?

[00:14:59] Speaker 00:
And they don't include the fact that this person filed so many complaints against the agency that he was seeking to get a promotion from?

[00:15:08] Speaker 02:
Unrebutted testimony from the decision-makers is that these prior complaints had nothing to do with the process.

[00:15:13] Speaker 00:
But what were the other factors?

[00:15:14] Speaker 00:
You're saying, nope, we didn't base the decision just on the scores.

[00:15:19] Speaker 00:
What else did you base it on then?

[00:15:20] Speaker 00:
And what's in the record to support that there were all these other soft factors?

[00:15:24] Speaker 02:
I believe that the decision-maker, Ms.

[00:15:26] Speaker 02:
Farris Clarksman, an affidavit where she talked about the score and also the relevant work history and experience, especially I think in contracting that particular area, was a factor for her.

[00:15:38] Speaker 02:
She said that both of these candidates were qualified.

[00:15:40] Speaker 02:
It was a close call.

[00:15:42] Speaker 02:
But if it's a close call, then there are not profound or significant differences here.

[00:15:48] Speaker 01:
That's probably all the more reason why the actual score on the interview made the difference then, because he was the lowest only by one point.

[00:15:58] Speaker 02:
True, but the record shows that Miss Jackson gave him the highest score.

[00:16:02] Speaker 02:
So I heard today the theory that, well, she was trying to cover things up.

[00:16:09] Speaker 02:
And so she purposely gave him, I think the theory is now, a high score to cover up her

[00:16:17] Speaker 02:
intent to actually retaliate against him.

[00:16:20] Speaker 02:
I think that is not supported by the record.

[00:16:22] Speaker 00:
Let's go to Mr. Hilbert, okay?

[00:16:24] Speaker 00:
He submits a declaration or an affidavit under penalty of perjury, quote, I was not specifically aware of his disability or his prior EEO activity, end quote.

[00:16:40] Speaker 00:
That's talking about Mr. Bruce.

[00:16:42] Speaker 00:
And then yet on his

[00:16:44] Speaker 00:
Interview questions he says quote deal with a wall and harassment dash look Okay, a wall being why he was terminated Because you wanted him to come in and he didn't but the harassment so I I guess how do you square that?

[00:17:02] Speaker 02:
So I want to talk about that.

[00:17:04] Speaker 02:
Thank you your honor if you look at the notes that's at er 634 according to my notes and

[00:17:12] Speaker 02:
What he's writing about the AWOL, that look, that's he's reporting what the plaintiff, the appellant told him in the interview.

[00:17:22] Speaker 02:
So those are the words, as I read those notes, those are the words coming directly from the appellant here.

[00:17:28] Speaker 02:
Those aren't Mr. Hilbert's words or understanding.

[00:17:32] Speaker 02:
He didn't, he was told apparently in the interview, according to his notes, he's reporting what... Well, regardless of who the source is, why isn't that awareness?

[00:17:42] Speaker 00:
of the disability or prior EEO activity?

[00:17:47] Speaker 02:
He submitted an affidavit saying that he had no specific knowledge other than what appellant told him.

[00:17:58] Speaker 00:
He had non-specific knowledge.

[00:18:01] Speaker 02:
I don't think he ever investigated it.

[00:18:04] Speaker 02:
There's certainly no evidence that he ever investigated or looked into it.

[00:18:09] Speaker 02:
I'll put it that way in the record.

[00:18:10] Speaker 00:
But he was aware of the issue, and he made a note to himself to look into it.

[00:18:15] Speaker 02:
Well, I'm not sure he did.

[00:18:17] Speaker 02:
He reported that plaintiff said look.

[00:18:19] Speaker 01:
That's how I read it.

[00:18:21] Speaker 01:
The trouble is, because this was summary judgment, you have to look at any inferences more in favor of the non-movement.

[00:18:28] Speaker 02:
Again, let's assume Mr. Hilbert had knowledge.

[00:18:35] Speaker 02:
Still, does that mean that his decision was a but, that the prior EEO issue was a but for reason for his decision?

[00:18:44] Speaker 02:
I don't think so.

[00:18:45] Speaker 00:
Remember, we're talking on the- Why isn't that a jury question?

[00:18:49] Speaker 02:
Because it doesn't, as I understand the law following Nassar, it doesn't matter if it was a factor.

[00:18:55] Speaker 02:
It could even be a motivating factor, and that's not enough.

[00:18:58] Speaker 02:
It has to be the but for cause.

[00:19:00] Speaker 00:
But why isn't there a genuine material factual dispute as to but for causation?

[00:19:06] Speaker 02:
because there's no evidence, it's unrebutted testimony from all the decision makers that this was not the but for cause.

[00:19:18] Speaker 02:
Plaintiff had an opportunity to develop evidence below, take deposition of these folks.

[00:19:23] Speaker 02:
That was not done, that's not in the record ever presented to the district court.

[00:19:27] Speaker 01:
So the line that... Why is it that the agency allowed Ms.

[00:19:31] Speaker 01:
Jackson, Michelle Jackson to even be one of the three interviewers?

[00:19:35] Speaker 01:
where nine months before, an ALJ had found that she had discriminated against Bruce.

[00:19:40] Speaker 02:
Excellent question, Your Honor.

[00:19:41] Speaker 02:
If they had made a different panel decision, we might not be here.

[00:19:45] Speaker 02:
Ms.

[00:19:45] Speaker 02:
Ferris Clark was off that day, and so Ms.

[00:19:48] Speaker 02:
Jackson was filling in.

[00:19:49] Speaker 02:
My understanding is that agency has limited resources.

[00:19:52] Speaker 02:
There's not too many people they can draw from.

[00:19:54] Speaker 01:
And it sounds like not the smartest decision the agency has ever made.

[00:20:00] Speaker 02:
True.

[00:20:01] Speaker 02:
But again, the evidence, the record in front of the district court, I think, was that, and that's why I think it's a closer call, still that there was no causal link between Ms.

[00:20:12] Speaker 02:
Jackson serving on that panel, giving it, again, the highest score, and the decision that was ultimately made here.

[00:20:19] Speaker 01:
Because, you know, I mean, I noted that ALJ, I guess, what, Norkin, N-O-R-K-E-N, had ordered the agency to provide

[00:20:29] Speaker 01:
four hours of training to agency officials who had discriminated against Bruce, including Michelle Jackson, and that the agency should consider disciplining Jackson.

[00:20:41] Speaker 01:
That's in the record, right?

[00:20:43] Speaker 01:
Yes, from... From July of the year before.

[00:20:48] Speaker 01:
The year before, yes, sir.

[00:20:50] Speaker 01:
And yet to have this woman then be one of the interviewers for this promotion that Mr. Bruce was seeking just doesn't look good.

[00:20:58] Speaker 02:
I agree with you, Your Honor.

[00:20:59] Speaker 02:
I agree it doesn't look good.

[00:21:01] Speaker 02:
But again, what we're here on is to find if it meets the but for test.

[00:21:06] Speaker 00:
Is that your best argument on the retaliation claim, but for causation?

[00:21:10] Speaker 02:
I think it's the strongest argument.

[00:21:12] Speaker 02:
Even if you get past that, there is also

[00:21:15] Speaker 02:
the fact that these decisions were made for nondiscriminatory reasons, similar to the race claim.

[00:21:22] Speaker 02:
The district court never took that issue up, but I think you could affirm on that issue as well.

[00:21:27] Speaker 01:
What do you make of the fact that Mr. Hilbert, who was one of the other interviewers, ranked Mr. Bruce the lowest of all the five candidates, the four who made it and Mr. Bruce who didn't make it?

[00:21:40] Speaker 02:
I'm not sure.

[00:21:41] Speaker 02:
Mr. Hilbert, I believe, gave him a 34, is my understanding, which is a very good high score.

[00:21:46] Speaker 01:
Well, he could have given him as high as a 45, but he didn't.

[00:21:49] Speaker 01:
He gave someone else a 47, didn't he?

[00:21:54] Speaker 01:
47.

[00:21:56] Speaker 01:
Not 47, maybe.

[00:22:00] Speaker 01:
No, we couldn't have given him a 47 because 45 is the max.

[00:22:04] Speaker 02:
I believe that, I believe Mr. Hilbert was 34.

[00:22:06] Speaker 02:
I believe that was a good score.

[00:22:08] Speaker 02:
Not the highest, obviously, but a very good score.

[00:22:11] Speaker 02:
Again, from what I understand, the theory is now, had he given him a perfect score, that would still be evidence of retaliation in Appellant's mind because he's covering up.

[00:22:24] Speaker 02:
He's trying to cover his tracks, so to speak.

[00:22:27] Speaker 02:
And I don't think there's anything in the record that would support that kind of inference.

[00:22:32] Speaker 00:
I didn't understand your second argument.

[00:22:34] Speaker 00:
You're saying if we don't, we're not convinced on but for causation, then you go to non-race discrimination.

[00:22:43] Speaker 00:
That's your second best argument on the retaliation claim.

[00:22:46] Speaker 00:
Is that what you just said?

[00:22:47] Speaker 00:
I'm sorry.

[00:22:48] Speaker 02:
Yes, sorry.

[00:22:49] Speaker 02:
Let me try to clarify.

[00:22:50] Speaker 02:
So to reverse on retaliation, I think you have to find that there was sufficient evidence of but for retaliation here.

[00:23:01] Speaker 02:
But I think you also have to say that there was, on this record, evidence that the reasons for the hire were pretextual.

[00:23:10] Speaker 02:
I think you still have to make that analysis on the retaliation claim.

[00:23:14] Speaker 02:
That's nothing to do with race, although there's a pretext argument with regard to the race discrimination claim.

[00:23:20] Speaker 02:
But again, you have to decide that there's sufficient evidence to reverse because the reasons given by the agency by all these folks and affidavits

[00:23:30] Speaker 02:
is not to be believed.

[00:23:31] Speaker 02:
Or at least there's sufficient evidence that they shouldn't be believed.

[00:23:34] Speaker 02:
And we need to have a trial.

[00:23:36] Speaker 02:
I don't know if I need to go back to, I know we spent a lot of time on retaliation.

[00:23:43] Speaker 02:
I do agree that that's a closer call.

[00:23:45] Speaker 02:
I don't know if we need to go back to the race issue, but I'll just say, you know,

[00:23:56] Speaker 02:
There is no profound difference sufficient to reverse.

[00:24:00] Speaker 02:
on that issue, you know, the idea that one candidate, you know, has a JD from one school and another candidate has a JD from a different school or one candidate has a, you know, 3.8 GPA and another candidate has a 3.7 GPA.

[00:24:16] Speaker 02:
I don't think the courts weighed into that level of analysis in trying to determine whether race was a factor.

[00:24:27] Speaker 02:
All these folks were qualified.

[00:24:29] Speaker 02:
race had nothing to do with it.

[00:24:31] Speaker 02:
The district court clearly got that issue right.

[00:24:34] Speaker 01:
What do you make of the fact that Larson, who was black, was himself one of the selected people?

[00:24:39] Speaker 01:
Does that wipe out any race claim or not?

[00:24:41] Speaker 02:
Well, the district court didn't think so, but it's... I'm not sure how you can say appellant was treated differently because of his race when a person of his same race was selected over him.

[00:24:59] Speaker 02:
I'm not sure how to square that circle, be honest with you, Your Honor.

[00:25:03] Speaker 01:
Is there any case directly on points you can cite that answers that question one way or the other?

[00:25:11] Speaker 02:
I don't have a case in front of me, Your Honor.

[00:25:13] Speaker 02:
I'm sorry about that issue.

[00:25:16] Speaker 01:
It may not exist.

[00:25:19] Speaker 02:
Maybe not.

[00:25:22] Speaker 02:
Last thing I'll say, unless the panel has further questions on the retaliation claim, is part of the reason, if you read the district court's order, that summary judgment was granted on that issue is because of this temporal argument.

[00:25:39] Speaker 02:
The argument that appellant is sort of advancing in front of this court is different from the argument that was presented to the district court in opposition to summary judgment.

[00:25:48] Speaker 02:
If you read the appellant's summary judgment opposition below, which was what the court was ruling on in front of it, let's see if I have a site for you, 851 ER.

[00:26:03] Speaker 02:
The argument advanced was nine months prior, Ms.

[00:26:07] Speaker 02:
Jackson and these other folks were found to have done something wrong or talked to agency counsel about this prior issue.

[00:26:18] Speaker 02:
And so nine months later, they retaliated against her.

[00:26:22] Speaker 02:
That was the argument presented to the district court.

[00:26:26] Speaker 02:
The district court correctly ruled, based on I think it's Manette, which is a Ninth Circuit case, that that break in time is sufficient to break the causal chain.

[00:26:36] Speaker 02:
And there's other cases that say that, basically.

[00:26:39] Speaker 02:
A break of just a few months, really, is sufficient.

[00:26:42] Speaker 02:
That's what the district court

[00:26:44] Speaker 02:
correctly got right and I would just submit with my last minute that sending it back to the district court and saying you got it wrong for an argument that the plaintiff appellant never presented to you seems unfair.

[00:27:02] Speaker 02:
Of course this court has discretion to consider any argument not raised below but I would submit you can even avoid the whole issue by saying plaintiff appellant never raised this in front of the district court.

[00:27:13] Speaker 00:
I don't have any further questions.

[00:27:14] Speaker 00:
Let me see if my colleagues do.

[00:27:16] Speaker 00:
I do not.

[00:27:17] Speaker 00:
No.

[00:27:18] Speaker 00:
All right.

[00:27:18] Speaker 00:
Thank you.

[00:27:18] Speaker 02:
Thank you.

[00:27:20] Speaker 00:
And every council is welcome not to use your full time.

[00:27:26] Speaker 03:
I don't think today will be that day, Your Honor, but thank you.

[00:27:30] Speaker 00:
Maybe it should be, but go ahead.

[00:27:31] Speaker 03:
I understand.

[00:27:32] Speaker 03:
My friend suggested that the notes that the Mr. Hilbert

[00:27:37] Speaker 03:
wrote down were actually dictations of what Mr. Bruce said during his interview.

[00:27:41] Speaker 03:
If that was true, then all the decision makers had knowledge.

[00:27:44] Speaker 03:
And you still have to ask, why look?

[00:27:47] Speaker 03:
If he's just volunteering this information appropriately, we shouldn't consider it.

[00:27:50] Speaker 03:
Why look and why make a note of it?

[00:27:51] Speaker 03:
And also, why did nobody else note this?

[00:27:54] Speaker 03:
So I think that's speculation.

[00:27:56] Speaker 03:
I don't think that's actually evidence in the record on that point.

[00:28:00] Speaker 03:
Second, the ALJ did recommend discipline.

[00:28:06] Speaker 03:
And you're correct, Your Honor, that Miss Jackson doesn't appear to have been disciplined.

[00:28:10] Speaker 03:
It's not in the record.

[00:28:12] Speaker 03:
Instead, she was allowed to retain a position of power and then place directly in a position of power over Mr. Bruce, where other people in the agency saw that that was the outcome.

[00:28:23] Speaker 03:
And they knew about the prior oppositional activity.

[00:28:25] Speaker 03:
So they knew that she had been challenged by Mr. Bruce in this way.

[00:28:29] Speaker 03:
And that's what supports the inference of motive as to the other decision makers.

[00:28:34] Speaker 03:
Any of them might have decided reasonably, frankly, in the bureaucratic context, to not challenge Miss Jackson by advancing a candidate that she would take as a personal challenge to her authority.

[00:28:46] Speaker 03:
And she had been allowed to retain that authority despite what ALJ said was a gigantic failure.

[00:28:54] Speaker 03:
So the record here supports an inference in that direction.

[00:29:00] Speaker 03:
Just judge co you reference the soft facts.

[00:29:02] Speaker 03:
I just want to reiterate that miss Ferris Clark specifically in her her statements to the EEOC investigators In talking about mr. Lawson and why she chose him she first said that they were the same more or less and I chose the score and the second time she actually admitted that mr. Bruce had substantially more experience she tacitly acknowledged that and she said that this time she said I preferred mr. Lawson because he had as I recall the quote is

[00:29:30] Speaker 03:
relative diverse experience, meaning she preferred the person with less experience.

[00:29:35] Speaker 03:
The person with less experience, why would you want that unless the person with more experience was tainted somehow, perhaps by oppositional activities?

[00:29:45] Speaker 03:
In short, Your Honors, we urge the Court to reverse.

[00:29:47] Speaker 03:
Thank you.

[00:29:48] Speaker 00:
All right.

[00:29:48] Speaker 00:
Thank you.

[00:29:49] Speaker 00:
Thank you both for very helpful arguments.

[00:29:51] Speaker 00:
We're grateful.

[00:29:54] Speaker 00:
We'll take just a few seconds for counsel in the